OR Bar Civil Procedure 3 — Questions and Answers
Question 1: Under the federal pleading standard established in Iqbal and Twombly, a complaint must contain what to survive a 12(b)(6) motion?
- Detailed evidentiary facts supporting each element of the claim
- A short and plain statement showing the pleader is entitled to relief with enough facts to state a plausible claim (Correct answer)
- Specific dollar amounts and named witnesses for each allegation
- A verified statement under penalty of perjury by the plaintiff
Correct answer: A short and plain statement showing the pleader is entitled to relief with enough facts to state a plausible claim
Post-Twombly/Iqbal, a complaint must allege sufficient factual matter to state a claim that is plausible on its face, not merely conceivable.
Question 2: Defendant fails to raise improper venue in its initial motion to dismiss or answer. What is the consequence under FRCP 12(h)?
- The defense is waived and cannot be raised later (Correct answer)
- The court may raise venue defects sua sponte at any time
- Defendant may raise it in a 12(c) motion for judgment on the pleadings
- The defense merges into a later summary judgment motion
Correct answer: The defense is waived and cannot be raised later
Under FRCP 12(h)(1), defenses of lack of personal jurisdiction, improper venue, insufficient process, and insufficient service are waived if not raised in the first responsive motion or pleading.
Question 3: A plaintiff seeks to amend the complaint after the statute of limitations has run to add a new defendant. Under FRCP 15(c), the amendment relates back to the original filing date only if:
- Plaintiff can show the new defendant had constructive notice via media coverage
- The new defendant, within the Rule 4(m) period, knew of the action and knew but for a mistake would have been named originally (Correct answer)
- The new claim arises from the same transaction and the defendant is not prejudiced
- The court grants leave and plaintiff pays any filing fee differential
Correct answer: The new defendant, within the Rule 4(m) period, knew of the action and knew but for a mistake would have been named originally
FRCP 15(c)(1)(C) requires the new party to have received notice within the Rule 4(m) service period and to have known that but for a mistake they would have been named.
Question 4: During discovery, plaintiff seeks production of internal emails between defendant corporation and its outside counsel discussing litigation strategy for the current lawsuit. Defendant asserts attorney-client privilege. Which element is most critical to evaluate?
- Whether the emails were sent using the corporation's email server
- Whether the communications were made for the purpose of obtaining legal advice and kept confidential (Correct answer)
- Whether outside counsel billed for the emails at their standard hourly rate
- Whether the emails were cc'd to any third-party consultants
Correct answer: Whether the communications were made for the purpose of obtaining legal advice and kept confidential
Attorney-client privilege protects confidential communications between attorney and client made for the purpose of seeking or providing legal advice.
Question 5: A party fails to supplement its discovery responses after learning that a prior answer is materially incomplete. Under FRCP 26(e), what is the most severe sanction a court may impose?
- A written warning placed in the court's docket
- Exclusion of the undisclosed evidence at trial under FRCP 37(c) (Correct answer)
- A $500 fine payable to the clerk of court
- Dismissal of the party's answer or striking of its pleading
Correct answer: Exclusion of the undisclosed evidence at trial under FRCP 37(c)
FRCP 37(c)(1) provides that failure to supplement under Rule 26(e) may result in exclusion of the undisclosed information or witness at trial.
Question 6: Defendant answers the complaint and asserts res judicata as an affirmative defense. Under FRCP 8(c), what happens if defendant fails to plead an affirmative defense in the answer?
- The court may permit amendment to add the defense if no prejudice results (Correct answer)
- The defense is automatically waived and may never be asserted
- Defendant must file a separate declaratory judgment action to raise the defense
- The court may raise affirmative defenses sua sponte at any time
Correct answer: The court may permit amendment to add the defense if no prejudice results
Although FRCP 8(c) requires affirmative defenses in the answer, courts generally allow amendment under Rule 15 to add a forgotten defense if the opposing party is not prejudiced.
Question 7: Plaintiff serves 35 interrogatories on defendant in a federal diversity case. Defendant objects that the number exceeds the limit. What is the default limit under FRCP 33?
- 20 interrogatories including subparts
- 25 interrogatories including discrete subparts (Correct answer)
- 30 interrogatories excluding subparts
- No numerical limit; courts set limits by scheduling order only
Correct answer: 25 interrogatories including discrete subparts
FRCP 33(a)(1) limits a party to 25 interrogatories, including all discrete subparts, unless the court orders or the parties stipulate otherwise.
OR Bar Civil Procedure 3
Under the federal pleading standard established in Iqbal and Twombly, a complaint must contain what to survive a 12(b)(6) motion?